Today, by a 5-4 vote, the court in Glossip v. Gross upheld a lower court’s ruling that a particular combination of drugs may be used to execute a condemned prisoner by rendering him unconscious and stopping his heart.
Justice Samuel Alito wrote the majority opinion, and Justice Sonia Sotomayor wrote the principal dissent. They disagreed over, among other things, the effectiveness of the sedative used to render a condemned prisoner unconscious. Yet, the more provocative and troubling aspect of the case is what Justice Stephen Breyer said in his separate dissenting opinion.
Breyer, joined by Justice Ginsburg, questioned whether the death penalty can be used as a lawful punishment in any case, regardless of how painlessly the sentence is carried out. The result is that, once again, two members of the Supreme Court have raised the fundamental issue whether capital punishment is ever a permissible penalty under the Constitution.
Traditionally, the states used hanging, firing squads, or electrocution to execute a condemned prisoner. In the 1970s, states turned to a three-drug combination as a more human execution method: 1) sodium thiopental to induce unconsciousness, 2) a paralytic agent to inhibit muscular-skeletal movements, and 3) potassium chloride to induce cardiac arrest.
In 2008, the Supreme Court upheld that execution method in Baze v. Rees. Recently, however, states have had difficulty obtaining sodium thiopental because anti-death-penalty advocates have pressured pharmaceutical companies to prevent it from being used in executions, and the European Union has not allowed foreign pharmaceutical companies to ship it to states that would use it for executions.
Oklahoma, therefore, decided to use midazolam as the new first drug. Inmates sued, claiming that midazolam would not render them incapable of feeling pain. The district court denied the prisoners’ request for a preliminary injunction, and the 10th U.S. Circuit Court of Appeals affirmed. After granting review, the Supreme Court also affirmed.
Writing for the majority, Alito concluded that capital punishment is a permissible sanction for certain crimes, so the states must be able to carry out those sentences. To prevail on their Eighth Amendment claim, a condemned prisoner would need to identify a method of execution that entails a lesser risk of pain than midazolam, and the prisoners in Glossip had failed to do so. The prisoners also failed to establish that the district court had committed a clear error when it found that use of a massive dose of midazolam in its execution protocol would not create a substantial risk of severe pain.
Sotomayor, joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan, disagreed in both respects.
The majority’s decision is an important one because it rejected, at least for now, an oft-raised objection to the new execution drug protocol. But that ruling is actually the less important aspect of Monday’s decision. More important is that, once again, two Justices have doubted whether the death penalty can ever be used.
Breyer, joined by Justice Ginsburg, dissented on the ground that capital punishment is “highly likely” to be per se unconstitutional for three reasons: 1) the guilt-innocence determination in capital cases is often seriously unreliable, 2) capital punishment is arbitrarily imposed; and 3) the delay between the imposition and execution of a capital sentence is unconscionably long, undermining the death penalty’s penological value.
In reaching that conclusion, Breyer relied heavily, not on the text of history of the Constitution, but on social science studies and law review articles. He would have called for full briefing and argument on the constitutionality of capital punishment.
Justices Antonin Scalia and Clarence Thomas refused to take that suggestion lying down. They filed separate—very spirited—concurring opinions criticizing the suggestion that capital punishment is invariably unconstitutional, and each one joined in the other’s opinion.
Scalia found Breyer’s opinion “full of internal contradictions and (it must be said) gobbledy-gook.” Thomas also concluded that Breyer’s argument was not only legally unpersuasive, but also morally offensive. In his words, “We owe victims more than this sort of pseudoscientific assessment of their lives. It is bad enough to tell a mother that her child’s murder is not ‘worthy’ of society’s ultimate expression of moral condemnation. But to do so based on cardboard stereotypes or cold mathematical calculations is beyond my comprehension.”
Capital punishment abolitionists are nothing if not tenacious. Some people have opposed the death penalty on moral grounds as long as it has been used, but the modern-day efforts have tried to take advantage of the law rather than ethics or public opinion to put an end to it.
Abolitionists almost succeeded in 1972 when the Supreme Court held in Furman v. Georgia that the capital sentencing procedures then used in every state were flawed. The abolitionists suffered a loss four years later when the court held in Gregg v. Georgia that the death penalty is not invariably unconstitutional and another loss in 1987 when the court in McCleskey v. Kemp rejected the argument that the death penalty is inevitably infected with racism. But the abolitionists never abandoned hope, and they will not do so after today’s loss.
The Supreme Court’s Glossip decision is just another way station in a campaign against capital punishment that more closely resembles the Hundred Years’ War than the Invasion of Grenada.
Court watchers will be eager to see if Breyer and Ginsburg will follow the lead of their predecessors Justices William Brennan and Thurgood Marshall. The latter decided in the Furman case in 1972 that the death penalty was per se unconstitutional, and they held those views as long as they remained on the bench. In fact, they continued to dissent in every subsequent Supreme Court action that upheld a death sentence or refused to strike one down for the remainder of their careers on the Supreme Court.
Now, we will wait to see if Breyer and Ginsburg will do the same. Perhaps they will. The people who tried to defend the actions of Justices Brennan and Marshall argued that their position was justifiable—indeed, laudable—because “death is different” (a factor that the same parties and their allies seemed to overlook when the issue was whether Roe v. Wade should be overruled, but hypocrisy is the tribute that vice pays to virtue). Or perhaps Justices Breyer and Ginsburg won’t follow their predecessors.
No one likes to be called a politician or a hypocrite, even when you hold your job for life. We will have to wait and see what they will do, but it’s a pretty safe bet that Breyer and Ginsburg will never vote to uphold another death penalty—while trying to justify their votes on the ground that “No one in good conscience could vote to uphold a capital sentence as long as the validity of the death penalty remain in question.” Keep your eyes open.